Most people have little experience dealing with what happens after their loved one dies and they get appointed as Personal Representative or Executor to settle the estate. The first thing you should do is call Ascent Law for a free consultation. We can guide you through the entire process.
Before being appointed to serve as Personal Representative or Executor, the first step in probating an estate is to locate all of the decedent’s estate planning documents and other important papers. The decedent’s estate planning documents may include a last will and testament, funeral, cremation, burial or memorial instructions, and a Revocable Living Trust. The original documents should be stored in a safe place until they can be given to the estate attorney.
The decedent’s important papers will include information about the decedent’s assets, including bank and brokerage statements, stock and bond certificates, life insurance policies, corporate records, car and boat titles, and deeds; and information about the decedent’s debts, including utility bills, credit card bills, mortgages, personal loans, medical bills and the funeral bill. From these documents a list should be made of what the decedent owned and owed, how each asset is titled in the decedent’s individual name, as a tenant in common, in joint names, or in a trust and, for assets and debts that have a statement, the value of the asset or debt as listed on the statement and the date of the statement. In addition, the decedent’s prior three years of income tax returns should be set aside. Once the decedent’s important documents have been sorted through, the next is to meet with an estate lawyer to open the estate with the probate court.
Open the Probate Estate
Once the decedent’s legal documents and other important papers have been sorted through, the next step in probating the estate is to meet with an estate attorney to officially open the probate estate with the probate court. Once the estate lawyer has received enough information to draft the court documents required to open the probate estate, the person named to serve as Personal Representative or Executor in the decedent’s Last Will and the beneficiaries named in the Will, or, if there isn’t a Last Will, then the decedent’s heirs at law, will be required to review and sign the documents required to open the probate estate. While these documents will vary from state to state, or even from county to county within the same state, they will generally include the following:
• Petition for Probate Administration
• Oath and Acceptance of Personal Representative/Executor
• Appointment of Resident Agent
• Petition to Waive Bond
• Order Admitting Will to Probate
• Order Appointing Personal Representative/Executor
• Order Waiving Bond
• Letters of Administration/Letters Testamentary
Value the Decedent’s Assets
Once the probate estate has been opened with the probate court, the next step in probating the estate is to establish date of death values for all of the decedent’s assets. This step is important because most states require that an inventory of the decedent’s probate assets along with their date of death values be filed with the probate court within 30-90 days of the date when the probate estate was opened with the court. All financial institutions where the decedent’s assets are located must be contacted to obtain the date of death values. For assets including real estate, personal effects including jewelry, artwork, and collectibles, and closely held businesses, they’ll need to be appraised by a professional appraiser. While the probate court will only require date of death values for the decedent’s probate assets to be listed on the estate inventory, if the decedent’s estate is taxable for death tax purposes, then date of death values will also need to be established for the decedent’s non probate assets including those owned as tenants by the entirety or joint tenants with right of survivorship, payable on death and transfer on death accounts, life insurance, retirement accounts. Once the date of death values has been determined for the decedent’s assets, the next step is to pay the decedent’s final bills and ongoing expenses of administering the estate.
Pay the Decedent’s Final Bills and Estate Expenses
Once the date of death values has been determined for the decedent’s assets, the next step in probating the estate is to pay the decedent’s final bills and ongoing expenses of administering the estate. This is also the time when the Personal Representative will need to evaluate whether any of the decedent’s assets, such as real estate or a business, should be sold in order to raise cash to pay expenses and taxes.
It is the Personal Representative’s job to figure out what bills the decedent owed at the time of death, determine if the bills are legitimate, and then pay the bills. The Personal Representative will also be responsible for paying the ongoing expenses of administering the estate, including legal fees, accounting fees, utilities, insurance premiums, and mortgage payments. Once the Personal Representative/Executor has paid the decedent’s final bills and has the estate expenses under control, the next step is to pay any income taxes and death taxes that may be due.
Once the Personal Representative or Executor has paid the final bills and has the estate expenses under control, the next step in probating the estate is to pay any income taxes and death taxes that may be due. The Personal Representative or Executor will need to prepare and file the decedent’s final federal and/or state income tax returns and pay any taxes that may be due in a timely manner.
Aside from filing the decedent’s final income tax return, if the estate earns income during the course of administration, then the Personal Representative or Executor will need to prepare and file all required federal estate income tax returns as well as any required state estate income tax returns. If the decedent’s estate is taxable for federal or state estate tax purposes, then the Personal Representative or Executor will be responsible for preparing and filing the federal estate tax return and a state estate tax and inheritance return, and paying the tax bills. Once all of the income tax and estate tax issues have been resolved, the final step to settling the estate is to make distributions of what’s left to the estate beneficiaries.
Distribute and Terminate
Usually the first question that the estate beneficiaries will ask the Personal Representative or Executor is “When will I get my inheritance check?” But unfortunately for the beneficiaries, making distributions of the estate assets to the estate beneficiaries is the very last step in settling the estate.
Prior to making any distributions to the estate beneficiaries, the Personal Representative or Executor must be certain that every single expense of administering the estate and all taxes have been paid, or that enough assets have been set aside to pay the final bills and taxes. Otherwise, if the Personal Representative or Executor chooses to make distributions to the estate beneficiaries but expenses come up later, then the Personal Representative or Executor will have to pay these expenses out of his or her own pocket. If administration of the estate is expected to take more than a year, then the Personal Representative or Executor should work closely with the estate lawyer and accountant to plan for setting aside enough assets to pay the ongoing estate expenses and making distributions to the estate beneficiaries in multiple stages.
Upon the death of a Testator who lodged a Will at the Probate Registry during his/her lifetime, the probate registry is usually the first port of call after the burial of the Testator. The Probate Registry is charged with the duty of issuing a grant of probate to a deceased person’s Will. This grant of probate is the legal instrument which provides the legal basis for the enforcement of the contents of the Will. The application forms for the grant of probate consist of the following:
• Bank certificate
• Application for grant of probate of the Will
• Oath for Executor
• Affidavit of attesting witness of the Will
• Inventory of assets
• Particulars of leasehold/freehold properties left by the deceased
• Schedule of debts and funeral expenses
The difference with intestate administration is that the deceased person did not write a Will to guide the administration of his/her estate. Under such circumstances, the family reaches an agreement on which the personal representatives or administrators of the estate should be, and the nominated administrators take on the role of the executors of the estate by applying for the letters of administration which play the same role as a grant of probate. It is important to note that not just anyone can apply for the letters of administration. The Probate Registry usually gives consideration to the provisions of the Law which states the order of distribution of an intestate’s assets with the spouse and children of the deceased person. This will be considered by the Probate Registrar before the confirmation of the administrators upon issuance of the letters of administration.
Under an application for letters of administration, there is a procedure for the publication of the estate where the details of the Estate such as the names and addresses of the proposed administrators to the estate are published against the name of the deceased person. It serves as a notice to all interested parties that the administration of the estate will be granted to the appointed administrators in the absence of any opposition.
The application forms for letters of administration consist of the following:
• Bank certificate
• Application for letters of administration (without Will)
• Oath for Administration (without Will)
• Administration Bond (without Will)
• Declaration as to next of kin form
• Inventory of assets form
• Particulars of freehold/leasehold properties left by the deceased
• Schedule of debts and funeral expenses
It usually takes an average of 4 to 6 months to obtain letters of administration in Utah once the forms have been properly filled and returned with accompanying documents/requirements to the probate registry and barring bureaucratic delays.
Common Reasons Probate Is Necessary
If there was no will, probate is necessary to determine the beneficiaries and to distribute the decedent’s assets and title to property.
• A valid will exist: In order for the assets of an estate (excluding some smaller estates) to be properly distributed to the named beneficiaries, a valid will must go through probate. Probate is necessary when there are problems with an existing will.
Some of these issues may include: The submitted will is not the final version to be considered; there are mistakes in the will or it was fraudulently executed; the will was drafted at a time when the decedent was not of sound mind; or any other challenges to the integrity of the will.
In some cases, an institution or bank may waive the requirement that an estate be probated before money in an account is released if the beneficiary is the principal heir-at-law (person legally entitled to the real property of the deceased), all other possible heirs-at-law will have signed waivers and authorizations to pay the money to the beneficiary, and have agreed to repay the bank should any claims be made. But that’s the exception rather than the rule for nationally-operating institutions.
Probate is required when an estate’s assets are solely in the deceased’s name. In most cases, if the deceased owned property that had no other names attached, an estate must go through probate in order to transfer the property into the name of any beneficiaries. When there are no beneficiaries named or they have predeceased the decedent, probate is necessary. This situation applies to any retirement or savings accounts such as life insurance policies that would pay out to beneficiaries; if beneficiaries are not named or are all predeceased, the accounts will need to be probated in order to transfer funds or titles into beneficiaries’ names.
Probate is required when a decedent owned property in joint tenancy (also known as a Tenant-in-Common). In the case that a decedent owned property with others, probate must be used to remove the decedent’s name and transfer his or her share of the property into the names of the appropriate beneficiaries.
The probate process clarifies a will and protects an estate from challenges to the specified beneficiaries of inheritance. Although using probate for a will is an effective and sometimes necessary process, some matters of a will can be handled without involving a probate court. The strategies available depend on the nature and shared ownership of the property in the estate.
When you need to probate an estate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506